Group seeks ruling on affirmative action ban

A newly created legal foundation with roots in Macomb County filed a brief with the U.S. Supreme Court on Thursday urging the high court to take up the case of Michigan’s 2006 ban on affirmative action policies.

The voter-approved Michigan Civil Rights Initiative was struck down in November by the federal 6th Circuit Court of Appeals in Cincinnati, a ruling that stunned MCRI supporters and led to the creation of the XIV Foundation. In their “friend of the court” brief to the Supreme Court, which latched onto a similar request by state Attorney General Bill Schuette, the foundation argues that two federal appeals courts have ruled in an entirely opposite manner on affirmative action issues.

The nation’s highest court, they asserted, must determine the law of the land.

Jennifer Gratz, who led the MCRI campaign, said the 6th Circuit ruling contradicted the decisions by the 9th Circuit on affirmative action issues. As recently as 2012, the 9th Circuit upheld California’s Proposition 209, which established restrictions on racial preferences nearly identical to those in the 2006 Michigan ballot proposal.

Advertisement

“The 9th Circuit had two cracks at overturning this and … decided not to do so,” Gratz said. “The 6th Circuit ruled exactly the opposite.”

As a University of Michigan-Dearborn student, Gratz challenged her denial of admission to U-M’s main campus in Ann Arbor due to racial preferences. She eventually won that case in 2003 before the Supreme Court. Her success in court led her to lead the MCRI effort.

Michigan voters, by a 58 to 42 percent margin, amended the state constitution in 2006 to ban the consideration of race, sex, ethnicity or national origin in college admissions, government hiring and government contracting. The approval of that ballot proposal forced the University of Michigan and other public colleges to change policies.

The Nov. 15 ruling by the appeals court in Cincinnati prompted the formation of the XIV Foundation, which is named in honor of the U.S. Constitution’s 14th Amendment that was designed to establish equal application of the law among Americans of all stripes.

The brief filed with the Supreme Court includes signatories from across the nation and that of two prominent Republican political figures from Macomb County: Leon Drolet of Macomb Township, who played a key role in the MCRI campaign and later founded the Michigan Taxpayers Alliance, and state Rep. Pete Lund of Shelby Township.

“Whether equality before the law, without regard for ethnicity, is constitutional must finally be addressed by the Supreme Court,” said Drolet, a former state representative.

“We cannot have multiple, conflicting decisions from lower courts that reflect the politics of particular judges. Either governments can, or cannot, treat people differently based on their skin color. The people of Michigan voted to ban government race-preferences and now the Supreme Court must intervene to ensure that voters’ insistence on equal treatment is respected.”

Schuette had previously filed a brief with the high court making similar arguments for the need for a Supreme Court ruling.

Briefs by those opposing a Supreme Court determination are due by Feb. 4. Shortly after that deadline, the court may announce which cases it will handle in their upcoming session that begins in October.

The eight-judge federal Court of Appeals panel that threw out Michigan’s affirmative action ban based their decision not primarily based on racial issues but on minorities’ lesser ability to wage a statewide campaign than political activists.

The court said the 2006 amendment to the Michigan Constitution is illegal because it presents an extraordinary burden on opponents who would have to mount their own long, expensive campaign to reverse course and protect affirmative action.

The 6th Circuit ruled that the burden undermines a federal right that all citizens “have equal access to the tools of political change.”

After an intense, David vs. Goliath-style battle to win passage of the MCRI, the court’s reasoning was particularly infuriating to Gratz, now a California resident. Her immediate response, relayed to her supporters across the country, was this: “I must re-engage in the fight.”

The result was the XIV Foundation, which Gratz said was formed to combat a court ruling that subverted “the will of over 2.1 million Michigan voters who chose equality over discrimination.”

In the end, the future of the MCRI amendment may depend on the outcome of a Texas case with similar college admissions issues at stake that the Supreme Court is expected to rule on in the spring. If the court rules against the student challenging the University of Texas’ race-based preferences or if the justices issue a narrow ruling, that should impact whether they will accept the Michigan case.